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House-Senate Conference on Health Bill Likely Just as Secretive as Senate Process

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Now that the Senate has rejected two measures to repeal the Affordable Care Act (ACA), Majority Leader Mitch McConnell is promoting a so-called “skinny repeal” with the sole and explicit goal of advancing health legislation to a conference with the House, which passed its own ACA repeal bill in May. On this issue, a conference committee — a traditional method of resolving differences between House- and Senate-passed legislation — won’t likely be any more open and inclusive than the Senate’s secretive approach to date. And nothing in the rules for House-Senate conferences prevents Republican leaders from continuing their closed-door, partisan approach to rewriting our nation’s health care laws.

Here’s why:

Congressional leaders can exclude conferees from the real negotiations. Under the conference process, the House and Senate each appoint conferees, who come from both parties and are charged with negotiating a final compromise, called a conference report. If both chambers pass the report, it goes to the President for his signature.

Fundamentally, there are only two requirements for conference committee conduct: it must meet publicly at least once, and a majority of conferees from each chamber must sign the report. The conferees can hold extensive public meetings, or the chair can simply convene the conference once, for a brief session in which no actual business is transacted, while the real negotiations occur behind closed doors. Thus, nothing would stop Senator McConnell and House Speaker Paul Ryan from excluding all but a few Republican members from the decision-making process, which they’d likely do in an effort to craft a conference report that will secure a slim majority in both Republican-controlled chambers.

Conference reports are final products and can’t be amended. A conference report receives special treatment on the House and Senate floors, enabling each chamber to vote up or down on it without amendment. Also, in the case of a “budget reconciliation” bill like the current health legislation, Senate debate on the conference report is strictly limited to just ten hours.

A conference report retains reconciliation’s special protections. As long as Republican leaders continue to use the reconciliation process to modify or repeal the ACA, the conference report can pass the Senate with just a simple majority rather than the 60 votes needed to end a filibuster on other kinds of legislation.

Of note, the “Byrd Rule” still applies to the conference report.Named after its chief sponsor, the late Senator Robert Byrd of West Virginia, the rule allows senators to block provisions of reconciliation bills that are “extraneous” to reconciliation’s basic purpose of implementing budget changes. The conference report must comply with the Byrd Rule, so any provisions that don’t are subject to a “point of order” that could force the Senate to remove them from the bill. That applies to all Byrd Rule violations, whether the violations were present in earlier versions of the health legislation or were added during the conference.